Article 14

The judiciary in India has read the power of Constitutional Review under Article 13 of the
Constitution of India by which it has the power to strike down the Parliamentary Laws, if they
violate Part III (this is the part which contains Fundamental Rights) of the Constitution.
Therefore, if the CAA is unconstitutional, it has to violate some provision of the Part III. Article
14 - Right to Equality, forms a constituent of Part III. Whether Article 14 is violated or not
becomes the central question to determine the constitutionality of CAA. The decision on the
above question is not straightforward, and in the constitutional scheme of things, the judiciary
has two doctrines to decide upon this question.
Article 14 contains two concepts - equality before law and equal protection of laws. The first, is
a negative concept, which means that no one can have any special privilege in the country, with
respect to treatment by law. For instance, no one can have a special trial at a criminal court,
irrespective of the religion or the government position that they hold.
The second, is a positive concept, where in scores of cases, the Supreme Court has held that the
provision provides for equal treatment only under equal circumstances. This means that the state
can legitimately discriminate among people under different circumstances, and it is prohibited to
discriminate only among people in a particular circumstance. Under the second concept, the
State, for instance, can discriminate between a graduate and a diploma degree
holder, legitimately, and can also provide special privileges to a set of individuals, for instance,
the policy on affirmative action.
Judiciary, therefore, has a mandate to keep a tab on the extent of discrimination which has been
allowed. To do this the apex court has postulated two judicial doctrines under Article 14. The
first one, has been borrowed from the US jurisprudence, and is known as the Doctrine of
Reasonable Classification. This says that if there is reasonable classification by a law which is
based on intelligible differentia, and this differentia has a nexus with the objective of the law,
then such classification should be allowed. This is known as the nexus test, and was propounded
by the Supreme Court in the case of State of West Bengal versus Anwar Ali Sarkar.
The second and the new doctrine, adopted by the Supreme Court is known as Doctrine of Non-
Arbitrariness. It was first propounded by the court in EP Royappa versus State of Tamil
Nadu and was also used in the famous case of Maneka Gandhi versus Union of India. As per the
test of arbitrariness in this doctrine, it does not matter if the state action attempts a reasonable
classification or not, it matters if the action is arbitrary. It presumes that all arbitrary actions are
unequal and hence are violative of Article 14.
Applying the above tests is the only way to ascertain the question of constitutionality of CAA.
The first legal question, which arises from this, is that who are the subjects of this law. The
determination of subjects is important, because only the subjects have the legitimacy to approach
the courts and to challenge their treatment by the state. From a plain reading of the amendment,
it will be clear that the law only applies to illegal immigrants, simply because it talks about
legitimising illegal citizenship of a set of illegal immigrants.
The first legal question for the Supreme Court to decide in this case is, therefore, if an illegal
immigrant can even approach the Court.
It is now pertinent that we examine, what is the jurisprudence otherwise relating to illegal
immigrants, that has been propounded or settled by the Supreme Court of India.
The court in In Louis De Raedt versus Union of India has held that:
"The power of the Government of India to expel foreigners is absolute and unlimited and there is
no provision in the Constitution fettering its discretion and the executive government has
unrestricted right to expel a foreigner. So far as right to be heard is concerned, there cannot be
any hard and fast rule about the manner in which a person concerned has to be given an
opportunity to place his case."
The court after quoting the above in Sarabananda Sonwal v Union of India, has held that the
power to grant citizenship is consistent with territorial sovereignty. It means that it is a sovereign
and totally executive function. The Court has quoted the famous authority on International Law -
JG Starke, in para 49 of the judgment:
"Most states claim in legal theory to exclude all aliens at will, affirming that such unqualified
right is an essential attribute of sovereign government. The courts of Great Britain and the United
States have laid it down that the right to exclude aliens at will is an incident of territorial
sovereignty. Unless bound by an international treaty to the contrary, states are not subject to a
duty under international law to admit aliens or any duty thereunder not to expel them. Nor does
international law impose any duty as to the period of stay of an admitted alien."
These observations of the Court are not only pertinent for the CAA but also for the NRC, when
the court makes it clear that there is no duty upon the state under International Law, to admit any
immigrant.
It has been held by the Supreme Court in a series of cases, like General Manager, North West
Railway vs Chanda Devi, that the state can make rules to benefit a certain class of individuals,
which can arguably also apply to illiegal immigrants. In the mentioned case, it was for the
pension benefit to the regular employees, as opposed to casual employees.
Therefore, in the present case, the CAA provides for an expedited process for legitimisation of
illegal immigration of persecuted minorities from Afghanistan, Pakistan and Bangladesh. It can
be argued that this passes the tests contained in Article 14, because the reasonability of
persecution and its relevance in better treatment, can serve as a non-arbitrary treatment by the
state.
However, the ultimate decision has to be that of the Apex Court, because there can be legal
arguments against the constitutionality also. What is certain is that this is a question which
requires certain legal and constitutional scholarship, and can't be settled at the pedestrian level,
on the roads.